Director of Public Prosecutions v Kuer

[2024] VCC 1029

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00435

DIRECTOR OF PUBLIC PROSECUTIONS

v

ACHOL KUER

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF SENTENCE:	8 July 2024
CASE MAY BE CITED AS:	DPP v Kuer
MEDIUM NEUTRAL CITATION:	[2024] VCC 1029

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing.

Catchwords:              Plea of guilty – causing serious injury recklessly – False imprisonment – Commit indicatable offence whilst on bail – Offending committed in company – No prior criminal history – Verdins.

Legislation Cited:      Crimes Act 1958 s 17; Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 15 VR 269.

Sentence:                  Imprisonment for a period of 1 year and 8 months with a non parole period of 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M Arceri	Office of Public Prosecutions
For the Accused	Mr B O’Sullivan	Bowler and Co

HIS HONOUR:

1Achol Kuer, you have pleaded guilty to:

(a) one charge of causing serious injury recklessly contrary to s 17 of the Crimes Act 1958 (‘Crimes Act’) which carries a maximum penalty of 15 years imprisonment (Charge 1); and

(b)   one charge of false imprisonment contrary to Common Law, which carries a maximum penalty of 10 years imprisonment (Charge 2).

2You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment (Summary Charge 8).

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4The offending occurred on 16 March 2021.

5The victim is Sisilia Meshwang. She was 32 years old at the time of the offending. She was homeless at the time and occasionally living with her cousin, Ayen Akot, on level 14 of the high-rise apartments at 229 Hoddle Street Collingwood.

6There are three other co-offenders in this matter.

(a)   Malok Monah, aged 26 at the time of the offences;

(b)   Sora Akec, aged 29 at the time of the offences; and

(c)   Nenawr Morwell, aged 25 years at the time of the offences.

7The victim and Ms Akec have known each other since they were children, immigrating to Australia with their respective families in the mid to late 1990’s.

8The victim knew you, Mr Monoah and Ms Morwell through socialising and drinking alcohol together at the Harmsworth Street reserve in Collingwood, close to the high-rise apartments at 229 Hoddle Street.

9On 15 March 2021 at 12:45pm, Ms Akec arrived at apartment 82 at 229 Hoddle Street after travelling from Werribee. She was intending to stay a few days with you and Mr Manoh, where you lived together. You and Mr Manoh were in a relationship.

10Later in the afternoon on 15 March 2021, the victim was socialising with yourself, Ms Akec and others, both at the apartment and at the Harmsworth Street reserve.

11At about 1:00am on 16 March 2021, the victim visited a friend, Shahzadi Perez, on level 3 at the Hoddle Street address. Another woman, Mayen Maker (also known as Maze) was also present. Ms Perez told the victim she wanted to go and get some cash out. The victim, Ms Perez and Ms Maker left the apartment and travelled together to the ground floor.

12The three of them left the apartment block and walked to a petrol station where Ms Perez got in a taxi with a friend and left, leaving the victim with Ms Maker. The victim and Ms Maker walked back to the apartments at 229 Hoddle Street. The victim met and greeted two male associates near the front door. The victim and the two male associates took the lift to level 14, where the victim was residing.

13At 2:51am, CCTV captures you, Mr Monoah and the two male associates earlier greeted by the victim, entering an elevator on level 8 at 229 Hoddle Street. The group travelled to the ground floor and walked away from the apartment block.

14At 3:51am the victim is captured on CCTV travelling by elevator to level 8. A few seconds later, you and Mr Monoah are seen travelling by elevator also to level 8. At this time, the three of you were all on level 8, socialising in your apartment.  

15At 4:14am, the victim left the apartment with the two men she had earlier greeted. They travelled together to the ground floor.

16Mr Monoah and his cousin, Ms Maker, had arranged to meet. Ms Maker failed to show and Mr Monoah attempted to contact her but was unsuccessful.   

17At 2:32pm Mr Monoah phoned Ms Perez and left voicemail messages for her asking about the whereabouts of Ms Maker. Between 2:33pm and 2:47pm, Mr Monoah and Ms Perez exchanged a series of 15 text messages. Ms Perez told Mr Monoah that Ms Maker had been kidnapped and that the victim was responsible due to a drug debt. Mr Monoah showed these texts to you, Ms Akec and Ms Morwell.

18During the evening of 16 March 2021, the victim was socialising with a group of approximately fifteen people including yourself and Ms Morwell, in the Harmsworth Reserve.

19At 11:13pm, the victim travelled by elevator to level 8. She was followed to level 8 by Ms Morwell and Ms Akec. They told the victim they needed to talk to her about something. Together the three women entered your apartment. You and Mr Monoah were already there.

20Mr Monoah, Ms Akec and Ms Morwell began to ‘interrogate’ the victim about the whereabouts of Ms Maker, seeking to find out what had happened to her. The victim explained that she had last seen Ms Maker a little after 1:00am on 16 March. The group clearly did not believe her. They forced her into a bedroom where they continued to ‘interrogate’ her. They punched and kicked her to the head and body. They ripped off a headscarf she was wearing.

21The victim pleaded with Mr Monoah, Ms Akec and Ms Morwell to stop, reasserting that she had told them everything she knew about the last sighting of Ms Maker.

22Ms Akec choked and hit the victim, loud enough for you to hear what was happening from the next room. The victim was crying and repeatedly trying to tell her story. You demanded that the victim take you all to ‘. . . the houses you last took Maze.’

23At 11:53pm, CCTV captured you and Mr Monoah leading the victim into the elevator on level 8 with Ms Akec and Ms Morwell following. The victim is holding her abdomen and her face is swollen around the eyes and there is blood on her lip. In the elevator Ms Morwell laughed and held an open palm to the victim’s stomach.

24The four of you, together with the victim, went first to level 3 but Ms Perez did not answer the door of her apartment.

25At midnight, the four of you led the victim into the elevator and travelled to the ground floor. At one stage Mr Monoah placed his arm outwards to stop the victim leaving the elevator.

26Mr Monoah and Ms Morwell led the way from the apartments at 229 Hoddle Street to the apartments at 253 Hoddle Street. You and Ms Akec were behind the victim compelling her to follow. You all went to Troy Marsh’s apartment in search of Ms Maker. The door was not answered despite it being kicked several times.

27You, Ms Akec and Ms Morwell continued hitting and kicking the victim who was still trying to convince you that she knew nothing about the whereabouts of Ms Maker.

28The four of you became more aggressive, hitting the victim to the face and stomach. Ms Akec grabbed her around the throat and gouged at her eyes to such an extent that the victim told you she was ‘blind’.

29At 12:10am, CCTV captures Ms Akec pushing the victim into the elevator causing her to fall to the floor.

30At this point the CCTV captures you looking at the CCTV camera and then assisting the victim to her feet. The victim was struggling to stand due to her injuries and had to lean on the wall. Ms Akec then took the victim’s arm and compelled her to follow you and the your co offenders.

31The victim asked for help and told the group she felt ‘a bit funny’. Ms Akec and Ms Morwell continued to punch her. While exiting the foyer of 253 Hoddle Street, CCTV captures Ms Akec holding the victim on her right side and pushing her forcefully forward with the group of you following.  

32Together you all walked to Dight Street, Collingwood where you purchased a bottle of Bailey’s liquor. Together you dragged the victim with you, continuing to hit her to the head and body.

33You were seen together by a number of people. One of those, a Mr Abiel, talked to the group. The victim broke away from the group and pleaded with Mr Abiel for help. Notwithstanding Mr Abiel saying ‘enough, enough’, Ms Akec continued to strike the victim even while she was hanging onto Mr Abiel. Mr Abiel attempted to protect the victim’s head and pushed Ms Akec away. Eventually, he placed the victim on the ground close to the gazebo in Harmsworth Reserve where you and your co offenders had walked.

34At 12:36am, Ms Akec picked the victim up from the ground and walked her to the gazebo where she sat the victim on a seat. She continued to assault her to the head and body. She pulled the victim to the concrete surface of the gazebo. Mr Abiel attempted unsuccessfully to intervene. He then left the victim in the hands of the group after urging all of you again to stop.

35The four of you persisted in your ‘interrogation’ of the victim, claiming she was lying and that she was not telling you something. Ms Akec continued her assault of the victim’s head by kicking and stomping.

36At 12:50am, Ms Akec struck the victim to the head with the liquor bottle knocking out several teeth. This assault continued until approximately 1:12am when you, Ms Akec and Ms Morwell dragged the inert victim onto the grass and left her lying there motionless.

37At 1:21am, the four of you dragged the victim to a unit at Vere Street in Collingwood, the residence of Abdirahan Yusef. You dragged the victim into the unit along the hallway and into the rear bedroom where she collapsed on the floor. You, Ms Akec and Ms Morwell continued to hit the victim.  Mr Monoah kicked her forcefully to the head twice. The victim became unconscious. Blood was pooling from her head onto the floor.  One or more of you pulled the victim’s clothing and underwear down to mid-thigh leaving her half naked. The victim was unconscious.

38Thereafter, the victim was tied up with rope around her neck, shoulders, wrist and legs. She was moved to the bathroom in the unit where she was tied to the bathroom sink (Charge 1: Recklessly Causing Serious Injury).

39The victim was detained against her will by the group for an approximate period of 2 hours and 15 minutes (being from 11.13pm to 1.30am) (Charge 2: False Imprisonment).

40In the early hours of 17 March, Mr Yusef and his partner returned to their unit in Vere Street. They went first to their bedroom but then heard a female screaming ‘I need help. Help me’. They entered the bathroom and discovered the victim. Mr Yusef recognised the victim and with some difficulty, untied her. Yusuf’s partner called ‘000’ for help.

41Police attended and found the victim still on the bathroom floor with severe swelling to her face and cheek area, laceration to her lip and blood covered clothes. She complained particularly of severe pain in her abdomen and groin area.

42Paramedics attended and took the victim by ambulance to Royal Melbourne Hospital for treatment. She was categorised as a time critical patient.

Medical evidence of serious injury

43On 18 March 2021 the victim was examined and assessed by Forensic Medical Officer, Dr Jo Ann Parkin, while the victim was under a general anaesthetic awaiting surgery.

44Following admission and surgery, the victim remained an in-patient at Royal Melbourne Hospital for 21 days, until 7 April 2021.

45The victim sustained the following injuries:

(a)   Facial injuries with bilateral periorbital oedema and eye haemorrhage;

(b)   Her eyes were so swollen she was unable to see;

(c)   Lip laceration requiring plastic surgeon’s intervention;

(d)   Right cheek and ear lacerations;

(e)   Neck abrasions;

(f)    A perforated colon (large intestine) at the hepatic flexure requiring resection surgery; a right hemicolectomy. This procedure involves the removal of the right side of the colon and surgically attaching the small intestine to the remaining portion of the colon. The hepatic flexure is the sharp bend between the ascending colon and the transverse colon;

(g)   Tooth fractures, and

(h)   Tooth avulsions.

46The victim required on-going outpatient treatment for her abdominal injuries, teeth and mouth injuries, lip laceration and elbow injury.

Arrest

47Following various enquiries, police attended apartment 82 at 229 Hoddle Street on 17 March 2021 at approximately 12:15pm. Inside the apartment they located you and your co-offenders in addition to two others. The four of you were arrested.

Record of Interview

48You were interviewed by police on 17 March 2021. You told the police that the victim was continuously assaulted by others on the night and taken from place to place. There was a text that said the victim had something to do with the person known as Maze, who was missing.

49You told police that throughout the attacks on the victim, you were trying to help, trying to stop it, and that you had begged the victim ‘to say something’.

Commit Indictable Offence Whilst on Bail

50You were charged with Contravening a Family Violence Intervention Order. You were bailed on the 14th of January 2021, to the 8th of June 2021 at Melbourne Magistrates Court. You were on bail at the time of this offending (Summary Charge 8: Commit Indictable Offence Whilst on Bail).

Nature and Gravity of Offending

51Having sentenced Nenawr Morwell on 13 December 2022 and Malok Monoah and Sora Akec on 28 February 2023, my remarks as to the nature and gravity of the offending remain relevant and will largely be reproduced in these sentencing remarks.

52Causing serious injury recklessly is an inherently serious offence, reflected in the maximum penalty of 15 years imprisonment. The assault on the victim involved a sustained attack over a number of hours at various locations, resulting in her becoming seriously injured and ultimately, unconscious. Further, the victim was held captive over the period in which the injuries were inflicted, unable to escape the attack, which is the basis of Charge 2.

53Ms Archeri who appeared on behalf of the Director of Public Prosecutions submitted that you were an active participant in the assaults upon the victim and not merely a person who was providing encouragement or support. The prosecution accepts that whilst you were not present at the beginning of the assault, you played an active role in the false imprisonment and assault of the victim, acknowledging that you did not strike the victim as many times as the other offenders and at times provided assistance to her. This acknowledgment by the prosecution of your lesser role in the offending to that of your co offenders, is reflected in the charge to which you have pleaded guilty compared to the more serious change your offenders pleaded guilty to.

54While the victim did not wish to provide a victim impact statement, this undoubtedly would have been a frightening experience for her and it is clear on the evidence that she required significant ongoing treatment involving a number of medical professionals.

55Mr O’Sullivan who appeared on your behalf conceded that the circumstances of the offending are patently serious. He submitted that you were not the principal or instigating offender and that your direct involvement was limited when compared with the other offenders.  This assessment of your offending accords with the prosecution position.

56In my view while as acknowledged, your role was less than that of your co-offenders, you were nonetheless active as part of group that seriously assaulted a young woman and, although you have pleaded guilty to a lesser injury charge than that of your offenders, your involvement in this sustained assault remains very serious.

Personal Circumstances

57You were born in 1998 in Kakuma refugee camp in Kenya. You are now 26 years old. You are the eldest of eight siblings and half-siblings aged between 26 and five years old.

58Mr O’Sullivan described your childhood as difficult. You speak of the conditions in the refugee camp as poor, sad and frequently violent. Your father and sister were unwell and you were not schooled.

59You and your family came to Australia as refugees in 2004 and lived in Queensland. You report that your parents were present and life was peaceful when you relocated to Australia. You report that your parents relationship became strained and they separated at some time in 2008.

60Your mother struggled with mental health issues and had a difficult time with the care of the children. You recall your mother threatening and attempting suicide and that you and your siblings were exposed to physical and emotional abuse. You state you sustained injuries from your mother’s abuse and were taken to hospital as a result. You state you had little to do with your father as a child and that he died from cancer in 2018.

61Despite the challenges of your childhood, you completed VCE and commenced a certificate III in Individual Support which you did not complete. You have worked in sales, pick-packing, retail and most recently for a pharmaceutical company. 

62You began experimenting with alcohol at social events while completing year 11 and 12. Upon turning 18, alcohol consumption rapidly increased. Your use of illicit substances has been sporadic and at the time of the offending you were using methylamphetamine on a regular basis.

63You report having had two significant romantic relationships, both of which exposed you to various forms of family violence including physical and emotional abuse and controlling and coercive behaviours. You met Mr Habil Benjamin in the context of excessive alcohol consumption and recall the relationship to be particularly violent. You report that on one occasion you were repeatedly punched in the face requiring stiches to your lip. You became pregnant with your daughter in late 2021 which put significant strain on your relationship with your mother resulting in you leaving home and moving to a women’s refuge. You report that you continued to be exposed to family violence from Mr Benjamin during and after your pregnancy. You remain fearful of him to this day.

64You were motivated to cease using drugs when you became pregnant with your daughter and remained abstinent throughout the pregnancy and for a time after the birth. You report that you began using cocaine with work friends in 2023 and by January 2024 you had relapsed into use of methylamphetamine.

65You report that your mental health suffered significantly after your father’s death, leading to an attempted suicide and psychiatric admission. Since then, there have been subsequent suicide attempts and one further mental health related admission. You report that your engagement with mental health services has been limited.

66A psychological report of Gina Cidoni dated 1 June 2024 was tendered on the plea. Ms Cidoni states that you present with a profound social withdrawal and discomfort and that you demonstrate a minimal interest in establishing and maintaining social connections. You report that you often experience persistent sadness and struggle with severe mood swings. Ms Cidoni opines that your experiences of trauma affect you through intrusive memories and heightened alertness to potential threats. She notes that your early life experiences have contributed to your development of insecure attachment patterns, emotional instability, and difficulty in forming stable relationships.

67Ms Cidoni used the Violence Risk Appraisal Guide (VRAG) to assess your risk of future violent offending. Upon a review of relevant factors, Ms Cidoni assessed you to have a high risk of violent reoffending due to both static and dynamic risk factors. In line with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) it was determined you had clinical diagnoses in line with Substance Use Disorder and Post Traumatic Stress Disorder with potential  concerns regarding Borderline Personality Disorder and Major Depressive Disorder. Ms Cidoni opined that the true nature of your psychiatric symptoms will become clearer as your abstinence from drugs progresses. She states that your prospects for rehabilitation centre on treatment approaches that address your substance use, mental health issues and psychosocial needs.

68In June 2021, you were formally placed on the Court Integrated Services Program (CISP) and received treatment and support in relation to substance use, mental health and family violence. A bundle of CISP reports were tendered on the plea with each report detailing your engagements with the program. In the report dated 28 July 2021, Ms Brooke McEllister states that you appeared incongruent during your case management appointments and that you had requested to consume alcohol, despite the emphasis to engage with appropriate alcohol counselling. The reports also state you did not attempt to engage with a General Practitioner to manage your mental health. Your engagement overall with CISP was described as ‘superficial’ and that in the 10 week period, you had not been able to identify any treatment needs, supports or goals for which CISP could provide assistance.

69Two letters from Women’s Housing were tendered on the plea and detail the possible accommodation resources available upon your release from custody. Women’s Housing is willing to work with you to ensure you achieve your housing goals.  Whilst on remand, you have engaged with Australian Community Support Organisation who have provided you with reintegration support. Ms Claudia Crestani reports that you have been very engaged and motivated with the program and that ReStart will provide assertive outreach to you post release.

70It is submitted that your time in custody has been particularly burdensome for you due to your complex mental health and separation from your daughter. In her letter of support, Ms Ally Voigt of Odyseey House, states that you have been present and engaged with Kids in Focus and that you have sought assistance in things such as attaining your licence, support to enrol your daughter into day-care and support in returning to work. Mr O’Sullivan submits that your primary goal upon release is to do everything required of you to get your daughter into your care. The tendered letters of support show your willingness to engage in the relevant support services as well as drug and alcohol testing, family counselling and anger management.  

Sentencing Considerations

71I turn first to your plea of guilty. You, together with one of your co-offenders, Nenawr Morwell, conducted a contested committal where the victim was cross examined. The matter was listed for trial however came before me for a sentence indication hearing in 2022. You rejected the indication however following further negotiations and the withdrawal of the more serious charge, you came back before me for a second sentencing indication which you accepted. In the circumstances, despite running a contested committal, your plea of guilty still carries utilitarian value. While not entered at the earliest opportunity, the plea avoids the time and expense of a trial and demonstrates your acceptance of responsibility and willingness to facilitate the course of justice.

72You are 26 years of age and were 23 at the time of the offending, with no prior criminal history. As such it was submitted on your behalf that rehabilitation should feature prominently in the sentencing equation. I agree. It appears that you have struggled with drug use since the commission of these offences and in the opinion of Ms Cidoni your prospects depend upon your engagement with integrated treatment to address your substance use and your mental health. Nonetheless, you have demonstrated in the past that you have the capacity to apply yourself, having completed your VCE and then working in responsible positions at least, it seems, until your drug use took hold. In my view it is clear that your prospects are only able to assessed positively if you engage in services and support upon your reintegration into the community.

73Following the second sentencing indication, the report from Ms Cidoni was obtained. As a result of the findings in that report it was submitted that the principles enunciated in Bugmy have application and that Verdins principles 1, 3 and 5 are enlivened.[1] Ms Arceri raised some concerns in relation to the report of Ms Cidoni. First, it appears that the report is written in relation to recent contravention of bail conditions in January 2024. Further, in the section headed ‘criminal history’ Ms Cidioni refers to you having pleaded guilty in February 2024 to charges of intentionally causing serious injury, which is clearly incorrect. The report does not directly address the offending any further. Ms Acheri also pointed to a number of inconsistencies between Ms Cidoni’s report and the earlier CISP report. For example, the CISP report notes that you only make reference to past alcohol use whereas to Ms Cidoni you stated that you have used other drugs and that following your release from prison in 2021, you began daily amphetamine use which continued to 2023.

[1] Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 15 VR 269.

74In my view given the inconsistences and inaccuracies of the report of Ms Cidoni, together with consideration of your history, I am unable to conclude that Bugmy principles are able to be relied on. Nonetheless, I have taken the various historical matters into account, as I did before the sentence indication was given. As to Verdins principles, I am also of the view that the materials do not allow for a causal or realistic connection to be made in relation to this offending and as such Verdins principles 1 and 3 in my view are not engaged. I do however accept that based on Ms Cidoni’s current assessment of you, and the current complexities of your mental health arising since the commission of these offences, that Verdins 5 is able to be given some weight.

75General deterrence and denunciation of your conduct are relevant sentence considerations. Without repeating the details of your conduct, attacking and seriously injuring a young women in company, whilst holding her against her will for an extended period, is serious conduct that must be deterred and denounced. In my view specific deterrence must also carry weight in the sentencing discretion.

Sentence

76Ms Kuer, would you please stand.

77Achol Kuer, on Charge 1, causing serious injury recklessly, you are convicted and sentenced to 1 year and 8 months imprisonment. On Charge 2, false imprisonment, you are convicted and sentenced to 9 months imprisonment. On Summary Charge 8 commit an indicatable offence while on bail, you are convicted and sentenced to 1 month imprisonment.

78Charge 2 and Summary Charge 8 will be wholly concurrent with the sentence imposed on Charge 1.

79I direct that you serve 8 months before becoming eligible for parole.

80Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 199 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

81Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 2 years and 6 months imprisonment with a non parole period of 18 months.